Commercial Litigation Update

Generative Artificial Intelligence (“AI”) tools like ChatGPT, Scribe, Jasper, and others have catapulted exponentially in popularity in recent years, for widespread personal and professional uses supplementing, if not largely displacing, traditional search engines. Applications for AI interactions in the workplace, algorithmically simulating human reasoning and inference, are expanding as quickly as users can draft new prompts requesting designs, how-to guides, correspondence, and countless other outputs. AI tools have quickly transitioned from an amusing new technology to essential tools for professionals and businesses, driving innovation and efficiency. These tools are used by businesses for an ever-expanding list of purposes, including brainstorming ideas based on patterns and data analysis; creating and memorializing documents, procedures, manuals, and tutorials; generating marketing and other client-facing materials; drafting communications; summarizing documents; explaining concepts and processes; and even generating code.

As these tools become more integrated into workplace processes, courts and litigants are beginning to confront the question of whether and to what extent AI searches and “chats” are discoverable in litigation. As the Federal Rules of Civil Procedure permit broad discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, litigants may potentially be entitled to compel production of information and communications generated or processed by AI platforms related to the facts in dispute. Fed. R. Civ. P. 26(b)(1); In re OpenAI, Inc., Copyright Infringement Litig., No. 23-CV-08292, 2025 WL 1652110, at *2 (S.D.N.Y. May 30, 2025). Just as local news headlines are replete with instances of internet searches as evidence in criminal cases[1], real-time AI “interactions” may likely be subject to the same disclosure requirements in civil litigation.

Effective April 1, 2015, the Commercial Division of the New York State Supreme Court promulgated a series of reforms to the Rules of Practice for the Commercial Division, including the addition of new Rule 11-e, which provides specific requirements for responding and objecting to document requests. In particular, Rule 11-e(a)-(b) requires parties to provide particularized responses and specify in detail whether documents are being withheld in response to all or part of the requests, and Rule 11-e(c) requires a date for the completion of document production prior to depositions. These are markedly different than those required by the Uniform Civil Rules that govern non-Commercial New York State Supreme Courts and County Courts, and have been the subject of much discussion by courts and practitioners in the ensuing years. However, one significant requirement of Rule 11-e that is often overlooked concerns Rule 11-e(d).

In particular, Rule 11-e(d) provides as follows:

(d) [b]y agreement of the parties to a date no later than one (1) month prior to the close of fact discovery, or at such time set by the Court, the responding party shall state, for each individual request: (i) whether the production of documents in its possession, custody or control and that are responsive to the individual request, as propounded or modified, is complete; or (ii) that there are no documents in its possession, custody or control that are responsive to the individual request as propounded or modified.